Report on the lands of the arid region of the United States, with a more detailed account of the lands of Utah

by John Wesley Powell; Willis Drummond; Clarence E. Dutton; Grove Karl Gilbert; A. H. Thompson

Section 3 required the work to be commenced within three years after the admission of the State, and to be completed within twenty years, or the United States was to be entitled to receive the amount for which any of the lands may have been sold; the titles in the purchasers from the State were, however, to be valid.

The language employed in this statute was more definite than that used in the Des Moines grant, and in it is to be found the first provisions respecting the increase in price of the reserved sections.

Probably no grant of this character has received such widespread notoriety as the one for the improvement of the Des Moines River. It is owing, no doubt, in a great degree to the numerous conflicting decisions by the Executive Departments touching the extent of the grant. The Hon. R. J. Walker, Secretary of the Treasury (under whose supervision the Land Office then came), decided on the 2d of March, 1849, that the grant extended above the tributary of the Des Moines River commonly known as the Raccoon Fork. The Land Office soon thereafter passed from the jurisdiction of the Treasury Department, and was placed as one of the bureaus of the Home or Interior Department. The Secretary of this lately established branch of the Government (Hon. Thomas Ewing) decided on the 6th of April, 1850, that the grant did not extend above the Raccoon Fork. From that decision the State of Iowa appealed to the President, who laid the matter before the Attorney-General. That officer (Hon. Reverdy Johnson), on July 19, 1850, expressed an opinion confirmatory of the decision of Secretary Walker. The Secretary of the Interior, however, being determined in his views, did not adopt the opinion of the Attorney-General, and the Commissioner of the General Land Office wrote, under date of 26th September, 1850, to the President, reviewing and objecting to the opinion of Mr. Johnson. The President, having been again applied to by the State of Iowa to determine the matter, referred the whole question to the Attorney-General (then Hon. J. J. Crittenden). That officer, without delivering an opinion on the merits of the case, expressed the belief that the President ought not to interfere, but should leave such questions to the proper officers. The then Secretary of the Interior (Hon. A. H. H. Stuart) thereupon decided that the grant did not extend above the fork, but subsequently decided to approve the selections for lands above the fork. Attorney-General Cushing, on the 29th of May, 1856, expressed the belief that on the merits of the case the grant was limited to the Raccoon Fork, but as Secretary Stuart had approved selections above that point, such practical enforcement of the grant had better be continued. The view of Mr. Cushing was subsequently maintained by the Supreme Court of the United States in Railroad Company vs. Litchfield. (23 Howard, page 66). By the act of Congress approved July 12, 1862, the grant was extended to the northern boundary of the State, so as to include the alternate odd numbered sections lying within five miles of said river, upon the following conditions: The lands were to be held and applied in accordance with the provisions of the original grant, except that the consent of Congress was given to the application of “a portion thereof” to aid in the construction of the Keokuk, Fort Des Moines and Minnesota Railroad, in accordance with the provisions of an act of the general assembly of the State approved March 22, 1858.

It is well to state that the work of improving the river was abandoned, and the railroad was constructed instead.

Without examining the numerous right of way and other lesser grants, I desire to direct attention to what is generally considered the first railroad grant. Reference is made to the donation by the act of September 20, 1850.

By that statute a grant was made to the State of Illinois of “every alternate section of land designated by even numbers, for six sections in width on each side of” the road and branches therein provided for. The road to be built was from the southern terminus of the Illinois and Michigan Canal to a point at or near the junction of the Ohio and Mississippi Rivers, with a branch of the same to Chicago, and another via the town of Galena, in Illinois, to the town of Dubuque, in Iowa.

The second section provided that should it appear that the United States had, when the lines of said road and branches were definitely fixed, sold any part of any section thereby granted, or that the right of preëmption had attached to the same, it should be lawful for any agent or agents (to be appointed by the governor of the State) to select so much land as would be equal to the tracts lost within the granted limits. This “indemnity” was to be selected within fifteen miles of the road and branches.

The third section provided that the sections and parts of sections which by the operation of the grant remained to the United States within six miles on each side of said road and branches, should not be sold for less than the double minimum price when sold.

Section 4 provided for the disposal of the lands, and declared that the road should remain a public highway for the use of the Government free from toll or other charge.

The fifth section declared within what period the roads should be completed, and provided that in the event of a failure on the part of the State to comply with the conditions of the grant, it was “bound to pay to the United States the amount which may be received upon the sale of any part of said lands by said State”. The title of the purchasers was to be valid, but the tracts not sold were to revert and revest in the United States.